WWW.LEXPERT.CA
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2018
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LEXPERT 33
McArthur, Joseph C. Blake, Cassels & Graydon LLP
(604) 631-3383 joe.mcarthur@blakes.com
Mr. McArthur is Co-Chair of the Firm's Arbitration Group. He acts as counsel
in arbitrations and commercial litigation for clients in a range of industries,
including mining, infrastructure, utilities, financial services and technology.
He is also regularly appointed as arbitrator in domestic and international
commercial disputes.
Martineau, Yves Stikeman Elliott LLP
(514) 397-3380 ymartineau@stikeman.com
Mr. Martineau is an expert in class actions, defending manufacturers, banks,
telecoms and publicly traded companies. He deals with every aspect of
litigation, with focus on commercial disputes, product liability, consumer law
and securities. He has pleaded before all civil courts of Québec and before
the Supreme Court of Canada.
Martel, Guy P. Stikeman Elliott LLP
(514) 397-3163 gmartel@stikeman.com
Mr. Martel is a partner in the Litigation & Dispute Resolution Group,
specializing in banking and restructuring. He has actively participated in
the representation of lenders, borrowers and investors in Canadian, cross-
border or foreign matters. He is a member of the Turnaround Management
Association, of the American Bankruptcy Institute, and of INSOL International.
Marseille, AdE, Claude M. Blake, Cassels & Graydon LLP
(514) 982-5089 claude.marseille@blakes.com
Mr. Marseille practises in the areas of corporate/commercial, product
liability, construction, and class actions litigation, with a focus on
multinational class actions in the pharmaceutical industry. He has written
extensively on Class Actions and the Law of Evidence, which he teaches
at Université de Montréal. He has been designated "Lawyer Emeritus"
by the Barreau du Québec in 2018.
Mark, Alan H. Goodmans LLP
(416) 597-4264 amark@goodmans.ca
Mr. Mark focuses on corporate/commercial litigation including governance,
securities, financial services and restructuring matters; class actions
including securities, product liability and environmental claims; and
electricity law and regulation. He has appeared before all levels of court
in Canada and various administrative tribunals.
Mallett, Tristram J. Osler, Hoskin & Harcourt LLP
(403) 260-7041 tmallett@osler.com
Mr. Mallett frequently advises clients on contested merger transactions;
take-over bid litigation; shareholder dissent and appraisal litigation and
shareholder derivative claims; securities misrepresentation, fraud and insider
trading matters; prosecutions undertaken by regulatory authorities and
industry organizations; and related internal investigations.
LEXPERT-RANKED LAWYERS
Robb, a plaintiffs' side counsel, agrees. "e
leave mechanism has a definite impact even before
we file, because the heightened standard means
we have to do careful vetting and screening before
we consider jumping into these things," he says.
"ere's no doubt that the jurisprudence on leave
standards has impacted the way counsel and in-
vestors assess value."
For his part, Milne-Smith believes that plain-
tiffs' counsel have been on a learning curve. "What
they've come to see is that what might appear to
be a straightforward case of misrepresentation
can turn out to be a complex case of business
executives exercising their best judgment in try-
ing circumstances," he says. "Sometimes they'll
get it right and sometimes they'll get it wrong, but
our courts have recognized that merely getting it
wrong doesn't merit a multi-million-dollar class
action based on tortious conduct."
All this having been said, Laing, for one, re-
mains hesitant to anoint the current downturn
in securities class actions as the new norm. "What
Canada is experiencing so far is a little bit of a slow-
down," she says. "We'll have to wait and see, espe-
cially because it takes from six to 18 months for US
actions to spur copycat cases in Canada."
e statistics alone don't determine the issue —
certainly not based on the sparse sample size that
exists. e Ontario Court of Appeal's decision
in Yip v. HSBC Holdings plc, 2018 ONCA 626,
represented the only case decided in 2018 that in-
volved a leave application. But even there, the deci-
sion was not based on the merits of the case but
on the fact that the alleged misconduct occurred
outside Canada.
According to NER A, of the 144 securities
class actions filed since 1997, 25, or 17.4 per cent,
had been denied leave or certification. Some 81
of these cases were statutory secondary market
matters and 14 of these, or 17.3 per cent, have
been denied leave or certification (10) or dis-
continued (four). Claims in 35 cases have been
settled and 32 remain unresolved.
What the statistics don't tell us is how many of
the leave applications were contested or how many
were resolved on consent. Without this informa-
tion in the context of an appropriate sample size,
it's hard to know just what the 2017 statistics mean
going forward.
e good news for the business community,
however, is that the near-panic that transpired be-
fore the enactment of Ontario's secondary market
liability regime in 2005 (the first in Canada) has
proved to be unwarranted. "ere was a percep-
tion for some period of time before and aer the
enactment of the legislation that securities class
actions might be low-hanging fruit for plaintiffs'
lawyers," Milne-Smith says. "Practice has proven
that this is not in fact the case."
